Chalk v Kuss [2009] QSC 440

SUPREME COURT OF QUEENSLAND CITATION: Chalk v Kuss [2009] QSC 440 PARTIES: Sandra Kay Chalk Applicant and Barry Ernest Mervyn Kuss Respondent FILE NO/S: S 594/2009 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court Rockhampton DELIVERED ON: 18 December 2009 DELIVERED AT: Rockhampton HEARING DATE: 14 December 2009 JUDGE: McMeekin J ORDER: Pursuant to section 24 of the Criminal Offence Victims Act 1995 the respondent pay to the applicant the amount of $30,000 by way of compensation for the injury suffered as a result of the offences for which the respondent was convicted on 6 August 2008 and sentenced on 7 August 2008. CATCHWORDS: CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND - where applicant victim of attempted murder and of a sexual assault – assessment of compensation. Criminal Offence Victims Act 1995, s 20, 22, 24, 25 Victims of Crime Assistance Act 2009, Chapter 6 RMC v NAC [2009] QSC 149 Vlug v Carrasco [2006] QCA 561 Kidner v Barber [2001] QSC 467 Jullie v Atwell [2002] 2 Qd R 367 SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent -- 1 of 7 -- 2 [1] Sandra Kaye Chalk applies for compensation under section 24 of the Criminal Offence Victims Act 1995 (“the 1995 Act”) which provides that where a person is convicted on indictment of a personal offence then “the person against whom the personal offence was committed may apply to the Court for an order that the convicted person pay compensation for injuries suffered because of the offence”. [2] The respondent is Barry Ernest Mervyn Kuss. Mr Kuss pleaded guilty on 6 August 2008 to two counts of administering a stupefying drug with intent to commit an indictable offence, one count of unlawfully attempting to kill Miss Chalk and one count of rape of Miss Chalk. The respondent was served with the proceedings but indicated that he did not wish to be heard. [3] The Victims of Crime Assistance Act 2009 (“the 2009 Act”) repealed the 1995 Act. However Ms Chalk’s rights are preserved by the transitional provisions in Chapter 6 of the 2009 Act which require that Ms Chalk’s application be heard and determined under the provisions of the 1995 Act, given that the application was filed on 2 November and before the commencement of the 2009 Act.1 The Relevant Provisions of the 1995 Act [4] It is necessary that the injury for which compensation is sought comes within the definition of “injury” in s 20 of the 1995 Act. “Injury” is defined to include “bodily injury, mental or nervous shock…or any injury specified in the compensation table…” As well in this case the applicant seeks compensation for “the totality of the adverse impacts of [the] sexual offence” as permitted by s 1A of the Criminal Offence Victims Regulation 1995 (“the Regulation”). [5] Schedule 1 to the Act consists of a Compensation Table setting out various descriptions of injury and ascribing to each such injury a percentage or a range of percentages of the scheme maximum of $75,000. Items 31, 32 and 33 are potentially relevant here and provide as follows: 31. Mental or nervous shock (minor)…2%-10% 32. Mental or nervous shock (moderate)…10%-20% 33. Mental or nervous shock (severe)…20%-34%” [6] By s 25 of the 1995 Act a Court assessing compensation may not order more than the prescribed amount, which is $75,000. [7] By s 25(4) the amount of compensation awarded for injuries specified in the table may not be more than the percentage of the scheme maximum which appears in the table with respect to each injury. The scheme maximum is reserved for the most serious cases and the amounts provided in other cases are required to be scaled according to their seriousness: s 22(4). [8] By s 25(5) in deciding the amount to be paid for an injury specified under a regulation (such as the adverse impacts of a sexual offence) the Court is limited to making an order for the amount prescribed by the Regulation. Section 2A of the 1 s 167 Victims of Crime Assistance Act 2009. -- 2 of 7 -- 3 Regulation effectively prescribes the maximum amount for, or relevant to, the adverse impacts of a sexual offence at $75, 000. [9] It is relevant to note that the compensation intended to be provided by the 1995 Act “is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise” (sub-section 22(3)) and in arriving at an appropriate amount of compensation the legislation provides that the Court is not to apply principles used to decide common law damages for personal injuries (sub-section 25(8)). Circumstances of the Offending Conduct [10] The applicant and respondent were in a defacto relationship over a period from 1993 to January 2006. The applicant then ended that relationship but the parties continued to live under the same roof. The applicant commenced a relationship with another man subsequently which the respondent could not accept. On 17 November 2006 the respondent administered a stupefying drug, Benzodiazepam, by introducing it into a fibre drink that the applicant took each night. His intention was to have sexual intercourse with her while she was stupefied. He did not proceed with that intent. [11] On 18 February 2007 the respondent again administered a stupefying drug to the applicant, on this occasion Stilnox. This was placed into a yoghurt mix that he gave to her. While under the effects of the drug the respondent took the applicant on a pretext to a remote bush setting, rigged up the car so as to introduce into the passenger compartment the exhaust fumes and told the applicant that “this is it”. The respondent prevented the applicant getting away and attempted to prevent her from shielding her face and mouth from the fumes. His intention was to kill both her and himself. [12] The respondent eventually desisted in that conduct but only after forcing the applicant to agree to have sexual intercourse with him. Sexual intercourse took place in the car, the applicant being in a state of terror induced by the respondent’s conduct towards her. The respondent required the applicant to perform oral sex on him as well, something that the applicant had not previously experienced. Eventually the respondent returned the applicant to her house. [13] At the time of the offending conduct the applicant was 59 years of age and the respondent was 62 years of age. [14] On 7 August 2008 I sentenced the respondent to imprisonment to 7 years with respect to the count of unlawfully attempt to kill the applicant, 6 years in respect to the count of rape and 2 years in respect of the counts involving the administration of a stupefying drug. Mental and Nervous Shock [15] The applicant was seen by a psychiatrist, Dr Quentin Mungomery. He diagnosed a post traumatic stress disorder of moderate severity with a range of intrusive, avoidant and increased arousal symptoms secondary to the sexual assault on 18 February 2007 where she feared for her life. -- 3 of 7 -- 4 [16] The symptoms related by Dr Mungomery are quite significant. Dr Mungomery reports that Ms Chalk’s ability to maintain her activities of daily living and social interactions have been substantially and adversely affected; she has suffered a breakdown of a significant relationship and has withdrawn from most family and friends and other social interactions; she has had two periods of psychological treatment without great success; and she has been trialled on two separate anti depressants with only partial improvement in the severity of her symptoms. [17] Whilst the applicant had psychiatric treatment at the age of 30 (that is nearly 30 years prior to the subject incidents) arising out of a history of sexual abuse as a child and adverse parenting, she appears to have adjusted well through her life and prior to the offences of 18 February 2008 was functioning well both at work and in her daily life. It does not appear that any matter, other than the subject offences, contributed in a material degree to Ms Chalk’s condition.2 [18] Dr Mungomery explained that a post traumatic stress disorder tends to be a chronic relapsing condition and given the failed treatment undertaken to date he considered that the applicant was “at moderate risk of having a permanent level of impairment”. [19] Dr Mungomery explained that Miss Chalk is now “avoidant and suspicious… in most interpersonal interactions for fear of further harm, has becoming increasingly socially withdrawn”. [20] The applicant’s affidavit bears out graphically the factual basis for the psychiatrist’s opinions. The applicant describes the affects on her as including: • The offences had a “devastating affect” upon her life; • She has lost confidence in her ability to assess others; • In the course of the attack on her she was in fear for her life; • Following the attack on her she “had no feelings or emotions and felt like [she] was dead inside”; • She is now fearful of meeting new acquaintances; • She is constantly in fear that the respondent or his friends and family may come to her house; • She is cautious at night after finishing work for fear of being assaulted or attacked finds that she is “very jumpy” whenever there is a sudden movement or loud noise; • She had difficulty sleeping with regular nightmares and flashbacks to the assaults. On average she would have about five to six hours of broken sleep most nights and wakes regularly with distressing dreams of being killed or assaulted; • She feels depressed, anxious and is often tearful and is irritable and snappy with others; • She has intrusive thoughts and memories of the assault on most days increasingly so as the release date for the respondent comes closer; • She has poor concentration and difficulty focusing. • Her relationship with her male friend broke up as a result of her changed personality following the attack on her. Assessment 2 see s 25(7); cf. SAY v AZ; ex parte A-G (Qld) [2006] QCA 462 at [20]-[23] per Holmes JA.). -- 4 of 7 -- 5 [21] A recognisable psychiatric injury is plainly capable of being an “injury” as defined in s 20 of the 1995 Act: see RMC v NAC [2009] QSC 149 per Byrne SJA. [22] The applicant contends that the appropriate item in the Compensation Table is item 33, that is, that her “mental and nervous shock” falls into the severe category, and that an appropriate assessment would be at 28%, that is about in the middle of the range. Such an assessment would result in an award of compensation of $21, 000. [23] The material matters that emerge from the medical evidence are that the post traumatic stress disorder appears to be gradually increasing in severity over time; that two extended episodes of therapy and medication have not alleviated the condition; that further treatment is recommended at reasonably significant cost; and there is a moderate risk of the condition being a permanent one. [24] Comparison with other assessments of compensation under these provisions in cases involving psychiatric injury is not easy – much depends on the descriptors used and the extent to which symptoms might fall under the “mental or nervous shock” category or “adverse impacts” category. [25] In RMC v NAC (supra) Byrne SJA assessed at 15% of the scheme maximum a condition described as an Adjustment Disorder with Anxiety and one of moderate severity. [26] In Kidner v Barber [2001] QSC 467 Cullinane J assessed as severe a condition diagnosed as a post traumatic stress disorder fluctuating in intensity and resistant to treatment and assessed compensation for that component at $20,000. [27] In Vlug v Carrasco [2006] QCA 561 an assessment of 15% was not interfered with on appeal, the diagnosis there being one of adjustment disorder with depressed mood and the applicant being considered to have a relevantly vulnerable personality justifying some moderation [28] I was referred to a number of assessments determined recently in the District Court involving post traumatic stress disorders: Morossi v Sant (Unreported, Townsville, Durward DCJ, 227/2009) – severe post traumatic stress disorder – 25%; De Roia v Adams (Unreported, Brisbane, Chief Judge Wolfe, 2992/2009) – moderate post traumatic stress disorder – 18%. [29] The diagnosis here is of a more serious condition than in Vlug and RMC and the symptoms, excluding those in the adverse impact category in RMC, appear to be more significant. [30] In my judgement the applicant’s psychiatric condition justifies an assessment in the severe category and I adopt 25% as appropriate - $18,750. Adverse Impacts [31] The applicant also seeks compensation for the adverse impacts of the sexual offence, pursuant to s 1A of the Regulation which provides: “1A Prescribed injury -- 5 of 7 -- 6 (1) For section 20 of the Act, the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is prescribed as an injury. (2) An adverse impact of a sexual offence includes the following— (a) a sense of violation; (b) reduced self worth or perception; (c) post-traumatic stress disorder; (d) disease; (e) lost or reduced physical immunity; (f) lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent; (g) increased fear or increased feelings of insecurity; (h) adverse effect of the reaction of others; (i) adverse impact on lawful sexual relations; (j) adverse impact on feelings; (k) anything the court considers is an adverse impact of a sexual offence. …” [32] The difficulty is in distinguishing between the compensation allowed for “mental and nervous shock” and the compensation that appropriately falls under this head. The decision in Jullie v Atwell [2002] 2 Qd R 367; [2001] QCA 510 effectively requires that those aspects of the effect of the criminal conduct which can be classified as “mental and nervous shock” cannot also be classified as an adverse impact as that would allow an impermissible doubling up in the assessment of compensation under the Act. The task is not made any easier when one appreciates that the difference between the impacts and injury as defined in s 20 is not one of quality but of degree: Vlug (supra) at [12] per Holmes JA [33] The adverse impacts that the applicant contends for as falling outside the parameters of “mental and nervous shock” are: (a) The impact on the applicant’s ability to maintain and form personal relationships and socialise with others; (b) The need to sell her home and move house due to her feelings of no longer being safe there and her memories of the offence. She swears that she lost some $30, 000 on the sale of the house due to her urgent need to sell. (c) She has some increased avoidance of sexual activity and evidence of disassociation during the sexual act as a way of coping with increased levels of anxiety; (d) The applicant has increased her hours of work as a way of coping with her emotional problems – keeping busy with her work distracts her. Hence there has been some reduction in her ability to pursue any leisure pursuits. [34] The applicant contends for an award of 15% of the scheme maximum for compensation in relation to these adverse impacts - $11, 250. [35] Dr Mungomery identifies the symptoms consistent with a post traumatic stress disorder as “a range of intrusive, avoidant and increased arousal symptoms”. -- 6 of 7 -- 7 [36] The impacts that would seem to me to fall outside that description include a “marked sense of violation”, a “moderate reduction in self worth or perception”, a “marked increase in fear and feelings of insecurity”, a “moderate impact” on her ability to enjoy sexual relations and a “marked adverse affect on [her] reaction to others”.3 [37] In my view the suggested assessment of 15% appropriately reflects the level of severity of these adverse impacts. Orders [38] I order that the respondent pay to the applicant the amount of $30,000 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injury suffered as a result of the offences which the respondent was convicted on 6 August 2008 and sentenced on 7 August 2008. 3 See pp15-16 of Dr Mungomery’s report -- 7 of 7 --